By Guest Blogger Kimbrell J. Hines
Anyone who has spent time around animals, and horses in particular, know they can be unpredictable. Even with gentle and well-trained horses, accidents and injuries occur. A person harmed by a horse may suffer serious injuries requiring expensive medical care. A person who suffers a horse-related injury may sue the horse's owner, the property manager, the riding
instructor, or the landowner for their injury. Unfortunately for horse professionals, people in the U.S. are known for being "sue happy," and lawsuits can be extremely costly. Even if an equine professional successfully defends a lawsuit, legal proceedings can be time- consuming, stressful, and expensive. But there is some good news for professionals in the horse industry. Equine professionals can reduce their chances of being sued by using liability release agreements.
What is a Waiver? Liability release agreements protect a business or professional from liability in the event of an accident. A liability release agreement is sometimes referred to by different names, such as a waiver of liability agreement, a release, or a waiver. This article will refer to liability release agreements as waivers. A waiver is a written contract that educates the participant of the risks of the activity. When signing a waiver, the person acknowledges they understand the activity's dangers and accept such risks. A written record makes it difficult for the injured person to later claim she was unaware of the potential risks of engaging in a horse-related activity. Although relatively common in the horse industry, there is doubt about the effectiveness of waivers. Some have argued waivers are "not worth the paper they're written on," leaving many professionals unsure whether they should use a waiver. Often, professionals who use a waiver treat the document as a mere formality, uncertain of its effectiveness. So, you may be wondering whether your program needs a waiver. In short, yes. All professionals engaged in equine-related services should require clients, guests, and spectators to sign an adequately drafted waiver before engaging in any horse-related activity.
Equine professionals can use a waiver as a valid form of risk management. This article will discuss the legal principles behind waivers and offer advice for using a waiver. Since legal issues regarding waivers can be complicated and state-specific, those with concerns or questions should consult a lawyer.
Why Use A Waiver? Waivers are helpful to equine professionals in two significant ways. First, waivers can provide a defense if there is a lawsuit. When adequately drafted in compliance with state law, signed waivers can result in a complete dismissal of a lawsuit. Second, a waiver may discourage someone from filing a lawsuit in the first place. It is important to note that liability releases do not entirely prevent a lawsuit— a person can file a legal claim even if they signed a valid, enforceable waiver. But the waiver can be used as a defense when a lawsuit begins. If the judge considers the waiver applicable, the waiver will be a strong defense for the horse professional. Additionally, reading and signing a document might cause a person to think twice before engaging in risky horse-related activities.
Furthermore, lawyers may be reluctant to represent an injured person if the person signed a waiver. Lawyers who represent plaintiffs (the injured person bringing the lawsuit) often work off contingency agreements, meaning the lawyer only gets paid if their client wins. Lawyers are a lot less likely to take cases where the person sued has a strong defense.
Tips for Using Waivers Requiring someone to sign a waiver will not automatically protect an equine professional from being sued. A person signing a waiver of liability must understand the risks of the activity and what rights they are giving up when signing a waiver. A court will not uphold a waiver if it is unclear or misleading. If an equine program or professional decides to use a waiver, there are a few essential things to consider.
A Waiver Should Be Easy to Read A waiver should be titled in an easy to read, large, bold font stating something similar to "Release and Waiver of Liability." The title should tell the reader the document's purpose and that it could affect the reader's ability to sue, even if the reader does not read the rest of the document. It would also be useful to include either near the title or by the signature portion, a statement such as, "Note: by signing this waiver, you give up your right to sue." Such language makes it difficult for the signer to argue later that they did not understand what rights they were giving up. It is best to keep a waiver to a single page and have the terms typed in standard-sized print. Waivers should avoid complicated and unclear language. It is preferable to have the terms of the waiver in plain language that can be understood by all readers. A well-written waiver makes it more difficult for someone to argue they did not understand what they were signing.
A Waiver Should Comply with State Law The enforceability of a waiver depends on the document's language and the waiver's compliance with state law. The legal requirements of a waiver vary from state to state, and failure to comply with your state's law could make the waiver unenforceable. It is crucial to keep state law in mind, as many professionals use liability releases obtained from a friend or downloaded from the Internet. These generic documents are problematic because they often contain broad language not specific to the participant or the equine program or not in compliance with state law. Such generic forms may be found unenforceable by a court.
A Waiver Should be Specific Waivers need to have clear and unambiguous terms; generally, with the waiver's language, the more specific, the better. A waiver should inform the participant of the inherent risks related to equine activities. A vague statement such as "horseback riding can be dangerous" does not adequately tell the risks. The waiver should also include an explanation of why horseback riding can be dangerous. A good starting point for coming up with this language could be your state's equine activity statute, which likely defines equine-related activities' inherent risks. An equine activity statute is a law designed to limit liability for injuries and deaths connected with horse-related activities. The idea behind these state laws is that a person dealing with horses "assumes the risk" inherent in horse-related activities. Some equine professionals believe that because they have an equine activity statute in their state or posted a sign of the law on their property, they are immune from liability. Unfortunately, this is not the case. Waivers and equine activity statutes protect horse professionals from different types of lawsuits. Even though posting an equine activity statute is a great practice, horse professionals should still require people who use their services or enter their property to sign a waiver.
A Waiver Should be Signed A signature demonstrates that the person signing read and understood the agreement. Before having a person sign a waiver, ensure the person has adequate time to read the entire document. Also, it is a good practice to ask the person signing if they read and understood the waiver. Additionally, a person signing a waiver can only sign away his or her rights. It is just as important to have family members, guests, and spectators on the property sign their liability releases. If the participant is a minor, the minor's parent or guardian should also sign the waiver. Generally, only parties explicitly named in a waiver are protected from liability. This issue comes up in situations where multiple horse professionals are working at the same location. For example, a riding instructor may have a student sign a waiver releasing the instructor from liability if the student gets hurt. But if an accident occurred, caused partially by the riding instructor's fault and partly by the property owner’s fault, the owner, if not named in the waiver, could still be liable. Each party should ensure they are listed in the waiver that participants sign. Such assurance requires communication between all parties. If a riding instructor implies their waiver covers a barn owner, the barn owner should read the waiver to ensure it specifically mentions the owner. And vice versa, if a barn owner claims their waiver covers riding instructors on their property, the instructor should read the document to ensure the waiver mentions the instructor. The waiver should clearly state the name of each person or entity exempted from liability, so there is no uncertainty about who is covered.
In conclusion, waivers can offer a powerful defense for equine owners and professionals if users ensure the waiver's terms are clear, the correct parties are mentioned, and the waiver is signed. Equine professionals should create a waiver that suits their particular business and have participants sign the document before engaging in horse-related activities. While it may take a little time and money to use a proper liability release, it will undoubtedly be less expensive and less time consuming than a lawsuit!
About the Author: Kimbrell Hines is an active equestrian and an attorney at Williams Parker. Hines received her law degree from the University of Florida Levin College of Law, a master's degree from the University of Tennessee, and a bachelor's degree from the University of Florida. In college, Hines competed for the University of Florida Equestrian Team. For questions and comments, Hines is accessible at firstname.lastname@example.org or at (941) 366-4800.
*** This article is provided as an information service only and is not meant as legal advice. Readers are cautioned not to act on the information provided without seeking specific legal advice concerning their unique circumstances and applicable laws in their respective states.